Three Problems With Judge Brown’s Opinion in Tuaua

On Friday, I promised to write more about the D.C. Circuit’s decision in Tuaua v. United States, in which the three-judge panel (Brown, Silberman, & Sentelle, JJ.) held that individuals born in American Samoa are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”). I must confess that, the more I read Judge Janice Rogers Brown’s 23-page opinion for the majority, the less I understand it. Thus, below the fold, I aim to (1) summarize what I see as Judge Brown’s reasoning; (2) offer three significant respects in which it fails to persuade; and (3) suggest why, whatever one thinks the right answer on the merits should be, the panel opinion ought not to be left intact, whether by the en banc D.C. Circuit or the Supreme Court.

I.  Unpacking Judge Brown’s Tuaua Opinion

As I wrote on Friday, Judge Brown’s opinion in Tuaua is best encapsulated in her own summary: “the Citizenship Clause is textually ambiguous as to whether ‘in the United States’ encompasses America’s unincorporated territories and we hold it ‘impractical and anomalous,’ to impose citizenship by judicial fiat—where doing so requires us to override the democratic prerogatives of the American Samoan people themselves.” To unpack this a little, and to help illustrate the (exasperating) inconsistencies in Judge Brown’s analysis, let me describe, in detail, the analytical steps the opinion takes in reaching this result:

  1. “The text and structure alone are insufficient to divine the Citizenship Clause’s geographic scope.” This is so, Judge Brown explains, because other provisions of the Constitution have been read to mean different things in referring to “the United States,” and so the mere reference thereto in the Citizenship Clause, by itself, is not conclusive.
  2. Although there are clear statements in the Fourteenth Amendment’s legislative history suggesting that the Citizenship Clause was meant to include all territories, “[i]solated statements … are not impressive legislative history.”
  3. Although the Supreme Court’s 1898 decision in Wong Kim Ark appears to suggest that the Citizenship Clause codified the common law rule of “jus soli” — which directly tied birthright citizenship to sovereignty, and not the status of the territory — “We are unconvinced … that Wong Kim Ark reflects the constitutional codification of the common law rule as applied to outlying territories,” since that case itself involved a person born in San Francisco after California gained statehood.
  4. Instead, the Citizenship Clause should be analyzed by reference to the Insular Cases — the early 20th century decisions in which the Court adopted a framework for applying the Bill of Rights (and a handful of other constitutional provisions) to the territories, distinguishing between “incorporated” and “unincorporated” territories. (“We conclude the scope of the Citizenship Clause, as applied to territories, may not be readily discerned from the plain text or other indicia of the framers’ intent, absent resort to the Insular Cases’ analytical framework.”).
  5. Although there are a number of Supreme Court cases implying (if not holding) that citizenship is a fundamental right (which would therefore apply without regard to territorial status), “[s]uch decisions do not reflect the Court’s considered judgment as to the existence of a fundamental right to citizenship for persons born in the United States’ unincorporated territories.”
  6. The extent to which other “free and democratic societies” follow jus sanguinus — “where birthright citizenship is based upon nationality of a child’s parents” — further undermines any argument that jus soli-based citizenship is, or ought to be, viewed as a fundamental right.
  7. Whether the Citizenship Clause confers jus soli citizenship upon individuals born in unincorporated territories like American Samoa therefore turns on whether “recognition of the right to birthright citizenship would prove ‘impracticable and anomalous,’ as applied to contemporary American Samoa.”
  8. Extension of birthright citizenship to American Samoa would be impractical and anomalous because “We hold it anomalous to impose citizenship over the objections of the American Samoan people themselves, as expressed through their democratically elected representatives.” (“We can envision little that is more anomalous, under modern standards, than the forcible imposition of citizenship against the majoritarian will.”).

II.  The Three Major Flaws in Judge Brown’s Analysis

Although there are lots of points on which one could quibble with Judge Brown’s analysis, let me flag what, to me, are the three most troubling aspects of the opinion:

A.  Reading Ambiguity into the Citizenship Clause

Obviously, holding that the Citizenship Clause is ambiguous is an essential first step to the court’s analysis (if it were clear, the rest of the opinion would be beside the point). To get to that holding, though, Judge Brown focuses on the ambiguity created by other constitutional provisions, including the Uniformity Clause of Article I (which the Court considered in Downes v. Bidwell), and the Thirteenth Amendment’s reference to “the United States, or any place subject to their jurisdiction.” There are two separate problems here: First, the fact that a term is ambiguous in other contexts does not, of itself, mean that it’s ambiguous in the context at hand. That is to say, the term “the United States” could mean different things in different constitutional provisions without necessarily establishing the ambiguity of that phrase in each of those provisions.

Second, and related, there are compelling reasons to distinguish the reference to “the United States” in the Uniformity Clause and Section 1 of the Thirteenth Amendment from the reference in the Citizenship Clause. The Uniformity Clause, after all, was drafted in 1787, at a time when there may well have been a very different understanding of the relationship between non-state territories and the federal government; and Section 1 of the Thirteenth Amendment was meant to proscribe private conduct, which is why it prohibits slavery both “within the United States” and “any place subject to their jurisdiction.” (Thus, for example, the Thirteenth Amendment would bar an American diplomat overseas from keeping slaves even if slavery was legal in the country in which he was doing so.)

More than just ignoring the distinct contexts in which these other provisions referred to “the United States,” Judge Brown dismissed efforts by the plaintiffs and various amici to show how contemporaneous history reinforces their textual reading of the Citizenship Clause, suggesting that “[i]solated statements … are not impressive legislative history.” That’s true so far as it goes, but it utterly neglects the far more important context of the Citizenship Clause — which was expressly intended to overrule the Supreme Court’s infamous decision in Dred Scott, which, let’s not forget, was largely about the relationship between citizenship and the federal territories. Indeed, Judge Brown invokes Dred Scott later in the opinion, but says nothing about how it should inform interpretations of the Citizenship Clause. In other words, Judge Brown makes the case for the Citizenship Clause’s ambiguity much easier by (1) placing too much emphasis on other constitutional provisions; and (2) downplaying the volume and one-sidedness of contemporaneous contextual understandings of the Citizenship Clause, specifically.

B.  Cherrypicking the Holdings (and Force) of Supreme Court Precedents

The same inconsistent approach can be found in Judge Brown’s treatment of the plaintiffs’ argument that the Citizenship Clause was meant to confer jus soli citizenship — citizenship based upon birth within the territory of the sovereign. Consider, in this regard, the radically different weight she places on Wong Kim Ark (a Supreme Court case the plaintiffs argue strongly endorses that reading) and the Insular Cases (none of which dealt with the Citizenship Clause of the Fourteenth Amendment). Wong Kim Ark, Judge Brown concludes, can be distinguished because, although the Court there seemed to suggest that the Citizenship Clause incorporates the common law conception of jus soli citizenship, the specific question of whether that reading applied to non-state territories wasn’t there raised. (Of course, there’s no support in the text of the Citizenship Clause for concluding that it adopts jus soli for states and incorporated territories, and jus sanguinus for unincorporated territories, but I digress…)

In contrast to Judge Brown’s unwillingness to read Wong Kim Ark broadly is her generous nod to the Insular Cases, none of which (unlike Wong Kim Ark) squarely dealt with the Citizenship Clause: “Although some aspects of the Insular Cases’ analysis may now be deemed politically incorrect, the framework remains both applicable and of pragmatic use in assessing the applicability of rights to unincorporated territories.” Judge Brown, in other words, rejected the plaintiffs’ argument that the Insular Cases ought not to be extended to the Citizenship Clause entirely because the Supreme Court has referred to the applicability and pragmatic use of its framework in other contexts. There thus seems to be more than a little tension between how readily Judge Brown dismisses Wong Kim Ark (in which the Citizenship Clause was specifically at issue) and how readily she embraces the (deeply contested) framework of the Insular Cases (in which the Citizenship Clause was never the provision in question).

Finally, before turning to how Judge Brown applied the Insular Cases, it’s worth pausing for a moment to make a larger point about her reliance upon them in the first place. As an amicus brief on behalf of five of the leading scholars of those decisions had argued,

the Insular Cases’ approach to the constitutional status of the U.S. territories lacks any grounding in constitutional text, structure, or history. The Insular Cases, rather, reflected the assumptions of the time that the United States, like the great European powers of that era, must (despite being constrained by a written Constitution) be capable of acquiring overseas possessions without admitting their “uncivilized” and “savage” inhabitants of “alien races” to equal citizenship. That reasoning, even if it were constitutionally relevant, is the product of another age. It has no place in modern jurisprudence even if (as amici doubt) it had any validity in earlier times.

In other words, whereas it would be one thing if the D.C. Circuit’s reasoning was compelled by the Insular Cases, Judge Brown candidly admits that it isn’t — but that that framework should be followed in any event despite both (1) the strong arguments in favor of the uniqueness of the Citizenship Clause; and (2) the substantial historical and political baggage surrounding those decisions (which she attempts to dismiss by characterizing as turning on the decisions’ lack of “political correctness”). As I wrote in my preview of the oral argument, the constitutional question came to the D.C. Circuit on a clean jurisprudential slate. And while it’s one thing for the Court of Appeals to nevertheless choose to embrace the Insular Cases’ framework, to do so without considering any of the myriad arguments for why it shouldn’t be extended to the Citizenship Clause is, in a word, troubling.

C.  Turning the “Impractical and Anomalous” Test on Its Head

But even if you’re with Judge Brown to this point — that the Citizenship Clause really is ambiguous, and that the Insular Cases’ selective incorporation framework is the best way to resolve the ambiguity — the last step of the court’s analysis is perhaps the most alarming.

Recall, from above, that Judge Brown holds, by reference to the test articulated in decisions such as Reid v. Covert, that it would be “impractical or anomalous” to confer jus soli citizenship to those born in an unincorporated territory like American Samoa because such a step would be “over the objections of the American Samoan people themselves, as expressed through their democratically elected representatives.” This conclusion has at least two separate flaws:

First, the Supreme Court has never suggested that majoritarian considerations have anything to do with the “impractical or anomalous” test — and for good reason. In every prior case to apply the “impractical or anomalous” test, the Supreme Court has asked that question from the perspective of the federal government — exploring whether the extraterritorial extension of the constitutional provision at issue would either pose insurmountable practical and logistical obstacles for the government; or whether such an extension of rights would require the federal government to provide anomalous treatment to the group at issue as compared to other similarly situated groups. But by that logic, the “impractical or anomalous” test should’ve come out the other way, here; it would not be terribly difficult for the federal government to provide birthright citizenship to American Samoans (it already so provides to individuals born in all of the other US territories, including unincorporated territories like Guam, the Northern Mariana Islands, and the US Virgin Islands), and to that end, any anomaly with regard to birthright citizenship would only be resolved by extension of the Citizenship Clause to American Samoa. (Put another way, the “anomaly” here stems from the fact that Congress has seen fit to confer birthright citizenship upon each of the other unincorporated territories — and so majoritarianism created the very anomaly at issue.)

Second, and perhaps more importantly going forward, allowing the “impractical and anomalous” test to be resolved based upon majoritarian sentiment fundamentally devalues the importance of constitutional rights in the territories — where the rights that aren’t supported by a majority are perhaps the most in need of judicial incorporation. After all, imagine if, in Reid v. Covert, the Court had asked whether a majority of US citizens living in occupied post-war Germany agreed that servicemember dependents had a due process right to a civilian, rather than military, trial for the alleged murder of their servicemember spouse. Do we really think the Court would have been moved to reach a different result if the answer was “no”?`

Judge Brown defends this reconception of the “impractical or anomalous” test by reference to the American Samoans’ right of self-determination and their concern about the potential negative cultural consequences that might follow from incorporation of additional constitutional provisions. But it’s worth flagging both that a majority of American Samoans self-determined to remain a US territory (under a US Constitution that arguably includes jus soli citizenship), and that, perhaps more significantly, in the Northern Mariana Islands, where similar concerns were raised about the implications of birthright citizenship (which Congress nevertheless provided by statute), such negative cultural consequences have largely not materialized. Again, this is not to say that there aren’t other reasons why it might be “impractical or anomalous” to apply jus soli citizenship to American Samoa; only that these aren’t they.

III.  Why Tuaua Matters — Even if It’s the Right Result

Clearly, some of my criticisms of Judge Brown’s opinion stem from my own view of how this case should have been decided on the merits. But even for folks who think this is the correct result, there are three different aspects of Judge Brown’s opinion that could raise serious problems down the road, if left intact:

First, the opinion could fairly be read as holding that the Insular Cases framework applies to the application of every constitutional provision to the territories. Many of those questions have been mooted by Congress’s conferral of most of the relevant protections upon the unincorporated territories by statute, but if Congress ever saw fit to scale back those statutory rights, the breadth of the D.C. Circuit’s endorsement of the Insular Cases could be quite significant.

Second, and related, the Tuaua court’s holding that the Citizenship Clause is not a “fundamental” right for purposes of territorial incorporation doctrine (or, at least, that the only “fundamental” part of it is jus sanguinus) would also theoretically empower future Congresses to scale back the citizenship protections currently provided by statute to, among others, individuals born in Guam, the Northern Mariana Islands, Puerto Rico, the US Virgin Islands, and, perhaps, even the District of Columbia itself (we’re sure as heck not “destined for statehood”).

Third, and most importantly in the short term, the Tuaua court’s conversion of the “impractical and anomalous” test into a test of majoritarian sentiment risks not only prejudging future analyses of how other constitutional provisions should apply to US territories, but also analyses of how the Constitution should apply on foreign soil, to US citizens and non-citizens, alike. After all, the Second Circuit has already looked to the “impractical and anomalous” test in explaining why the Fourth Amendment’s Warrant Clause shouldn’t apply to searches of US persons overseas; and, in cases in which courts haven’t just categorically denied constitutional protections to non-citizens overseas (like Boumediene), this test has also figured prominently. If, all of a sudden, majoritarian wishes bear upon the calculus, it’s hard to see that as anything other than an inappropriately heavy hand on the scale against application of the Constitution overseas.

* * *

All of this is to say that I very much hope that Judge Brown’s opinion isn’t the last word on the subject. True, there’s little (if any) likelihood of a circuit split on the subject, and this decision won’t directly impact that many individuals (other than American Samoans who desire birthright citizenship, that is), at least for now. But the larger principles that Tuaua could one day be cited for, on their own, seem to demand further examination — if not reconsideration — either from the full D.C. Circuit or the Supreme Court, whether or not one believes that American Samoans should be entitled to birthright citizenship.

[Update: June 9, 2015, 11:24 am]: I’ve clarified point #6 from my summary of Judge Brown’s opinion to correct a misstatement in my characterization of the discussion of jus sanguinus-based citizenship. 

About the Author(s)

Steve Vladeck
